Golden Gate University Environmental Law Journal
Volume 6
Issue 2 Pacific Region Edition
Article 7
June 2013
Derailing Powder River Basin Coal Exports: Legal
Mechanisms to Regulate Fugitive Coal Dust From
Rail Transportation
Tovah R. Trimming
Golden Gate University School of Law
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6 Golden Gate U. Envt'l L. J. 321 (2013).
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Trimming: Fugitive Coal Dust
DERAILING POWDER RIVER BASIN
COAL EXPORTS: LEGAL
MECHANISMS TO REGULATE
FUGITIVE COAL DUST FROM RAIL
TRANSPORTATION
TOVAH R. TRIMMING*
I.
AN INTRODUCTION TO COAL DUST
Coal trains are known as “black snakes.” 1 The name aptly describes
the miles of uncovered rail cars 2 bearing the black cargo as they slither
along the tracks. During the journey from coal mines to their final
destinations, coal trains shed plumes of coal dust from the tops of the
train cars. As the dust spews from the rail cars, it fills the surrounding air
* Doctor of Jurisprudence Candidate 2014, Golden Gate University School of Law. The author
would like to thank the Golden Gate University Environmental Law Journal associate editors,
Timothy Sloane, Katherine Stockton, Marie Carpizo; her faculty advisor, Helen Kang; and the
dedicated Golden Gate University Environmental Law Journal editorial board.
1
NAT’L WILDLIFE FED’N, THE TRUE COST OF COAL: THE COAL INDUSTRY’S THREAT TO
FISH & COMMUNITIES IN THE PACIFIC NORTHWEST 4 (2012), available at
www.nwf.org/~/media/PDFs/Global-Warming/Reports/NWF_PacificCoal_FINAL.ashx.
2
Open-top cars are a railroad industry standard for shipping coal. Open-top rail cars are
cheaper and more easily loaded than covered cars. See, e.g., Nick Gier, Coal Problem: Coal Trains
Threaten Our Health and Our Environment, IDAHO STATE J., Dec. 2, 2012, available at 2012
WLNR 25595680 (reporting that closed cars increase the risk of spontaneous combustion and
shippers claim that ventilated tops are too expensive); see also Dustin Bleizeffer, Eye on Energy:
Coal Dust Could Increase Rail Costs, STAR TRIBUNE, Jan. 31, 2010, available at
trib.com/business/business/eye-on-energy-coal-dust-could-increase-rail-costs/article_24488f0738d0-557e-92ba-4aac83e23d17.html (noting that covers are a huge capital expense); Duane Bennett
& Anthony Sexton, Automation Trends in Train Loading, WORLD COAL, June 2012, available at
www.kanawhascales.com/images/PDF/World_coal_June_2010_Article.pdf (describing advances in
coal loading technology for open top train cars).
321
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with harmful substances like mercury, lead, cadmium, arsenic,
manganese, beryllium, and chromium. 3 When the dust settles, these
substances are deposited in soil 4 and water, 5 harming plant, animal, and
marine life. 6
Environmental consequences from coal dust are also rooted in
railroad safety concerns. Coal dust accumulation in the ballast can
destabilize the tracks and contribute to derailments. 7 Derailments impact
the environment because the overturned train can spill locomotive fuel
and dump thousands of pounds of coal and coal dust, resulting in soil and
water contamination. 8
Coal exports have heightened concerns about fugitive coal dust.
Despite the United States having the largest coal reserves in the world, 9
domestic consumption is falling. 10 This decline is a result of “low natural
gas prices, more stringent regulatory requirements, 11 warmer weather,
and low rates of economic growth.” 12 Another factor is environmental
groups’ successful efforts to curb the nation’s use of coal-fired energy. 13
3
See Paul R. Epstein et al., Full Cost Accounting for the Life Cycle of Coal, 1219 ANNALS
N.Y.
ACAD.
SCI.
73,
74-75
(2011),
available
at
solar.gwu.edu/index_files/Resources_files/epstein_full%20cost%20of%20coal.pdf;
see
also
ADEBOWALE ADENIJI, U.S. ENVTL. PROT. AGENCY, BIOREMEDIATION OF ARSENIC, CHROMIUM,
LEAD,
AND
MERCURY
14,
20,
26,
34,
(2004),
available
at
nepis.epa.gov/EPA/html/DLwait.htm?url=/Exe/ZyPDF.cgi?Dockey=900Z0C00.PDF.
4
See, e.g., ERIC DE PLACE, NORTHWEST COAL EXPORTS: SOME COMMON QUESTIONS
ABOUT ECONOMICS, HEALTH, AND POLLUTION 4 (2012), available at www.powerpastcoal.org/wpcontent/uploads/2011/11/coal-FAQ-April12.pdf.
5
See, e.g., Letter from Columbia Riverkeeper et al. to Steve Gagnon, U.S. Army Corp[s] of
Eng’rs
12-13
(May
3,
2012),
available
at
columbiariverkeeper.org/wpcontent/uploads/2011/09/2012-5-3-FINAL-Columbia-Riverkeeper-et-al-RHA-Comments-onMorrow-Pacific.pdf.
6
NAT’L WILDLIFE FED’N, supra note 1, at 10-11; see also Key Facts: Trains, COAL TRAIN
FACTS, www.coaltrainfacts.org/key-facts (last visited Mar. 21, 2013).
7
INFRASTRUCTURE SECURITY & ENERGY RESTORATION, OFFICE OF ELEC. DELIVERY &
ENERGY RELIABILITY, U.S. DEP’T OF ENERGY, DELIVERIES OF COAL FROM THE POWDER RIVER
BASIN: EVENTS & TRENDS 2005-2007 14 (2007), available at www.oe.netl.doe.gov/docs/FinalCoal-Study_101507.pdf.
8
See, e.g., Arthur Hirsch & Mary Gail Hare, Questions of Safety Large, BALT. SUN, Aug.
23, 2012, at 1A, available at 2012 WLNR 18065285.
9
Today in Energy: United States Leads World in Coal Reserves, U.S. ENERGY INFO.
ADMIN. (Sept. 2, 2012), www.eia.gov/todayinenergy/detail.cfm?id=2930.
10
ENERGY POLICY RESEARCH FOUND., INC., ECONOMIC VALUE OF AMERICAN COAL
EXPORTS 3 (Aug. 2012), available at www.eprinc.org/pdf/EPRINC-COALEXPORTS-2012.pdf.
11
See, e.g., Overview: The CAA Amendments of 1990, U.S. ENVTL. PROTECTION AGENCY,
epa.gov/oar/caa/caaa_overview.html (last updated Dec. 19, 2008) (the Amendments “promote[] the
use of clean low sulfur coal and natural gas, as well as innovative technologies to clean high sulfur
coal through the acid rain program”).
12
ENERGY POLICY RESEARCH FOUND., INC., supra note 10, at 3.
13
See Eric Lipton, Even in Coal Country, the Fight for an Industry, N.Y. TIMES, May 29,
2012, at A1, available at www.nytimes.com/2012/05/30/business/energy-environment/even-in-
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In response to the decline, coal companies are looking to overseas
markets to sell domestic coal. 14
The railroads are vital to coal exports because they are the most
heavily relied upon form of transportation in the coal industry. 15 In 2010,
railroads hauled seventy percent of all coal deliveries, constituting over
forty-five percent of total cargo. 16 Trains can transport coal efficiently
because rail infrastructure covers a wide geographic area and can move
large amounts of coal. 17 Railroads are important to coal export demand
because transportation costs factor greatly in the delivered price. 18 For
example, sixty percent of the delivered price of coal produced in the
Powder River Basin (PRB) is attributable to transportation costs. 19
The PRB region of northeast Wyoming and southeast Montana is an
area of interest because it houses the largest percentage of low-sulfur
coal in the United States, 20 which is in high demand throughout Asia. 21
China is of particular concern due to its rapidly growing economy 22 and
its heavy reliance on coal-fired energy. 23 The world’s largest privatesector coal company, Peabody Energy, recently told investors that United
States coal export capacity could more than double in five years to
kentucky-coal-industry-is-under-siege.html?pagewanted=all&_r=0 (noting that environmental
groups have targeted coal plants for years as the lead source of air pollution and are aiming for the
closure of about one third of coal plants by 2020); see also Coal Victories Across the Nation, SIERRA
CLUB, www.sierraclub.org/environmentallaw/coal/victories.aspx (last visited Oct. 15, 2012)
(providing links to stories about various abandoned or defeated proposals for coal-fired plants,
enforcement of Clean Air Act violations, and related matters).
14
See, e.g., W. ORG. OF RESOURCE COUNCILS, EXPORTING POWDER RIVER BASIN COAL:
RISKS AND COSTS 4 (2011), available at powerpastcoal.org/wp-content/uploads/2011/10/WORCExporting-PRB-Coal-Risks-and-CostsFINALFINAL9-111.pdf.
15
Gary L. Hunt & Hans Daniels, Coal: Inconvenient Truths, 146 PUB. UTIL. FORTNIGHTLY,
Feb. 1, 2008, at 10, available at www.fortnightly.com/fortnightly/2008/02/coal-inconvenienttruths?page=0%2C0.
16
ASS’N OF AM. R.R., GREAT EXPECTATIONS 2011: FREIGHT RAIL’S ROLE IN U.S.
ECONOMIC RECOVERY 8, 12 (2011), available at onerail.org/sites/onerail.org/files/documents/railstudy/aar-great-expectations-2011.pdf.
17
Hunt & Daniels, supra note 15, at 10.
18
Id.
19
Id.
20
COLUMBIA CTR. FOR CLIMATE CHANGE LAW, CARBON OFFSHORING: THE LEGAL AND
REGULATORY FRAMEWORK FOR U.S. COAL EXPORTS 3 (2011), available at powerpastcoal.org/wpcontent/uploads/2011/09/ColumbiaLawSchool_coalexportpolicy11.pdf. The PRB region is estimated
to contain eighty billion short tons out of a U.S. estimated total of 100 billion tons. Id.
21
Id.
22
THOMAS M. POWER, SIGHTLINE, THE GREENHOUSE GAS IMPACT OF EXPORTING COAL
FROM THE WEST COAST: AN ECONOMIC ANALYSIS 1 (2011), available at www.sightline.org/wpcontent/uploads/downloads/2012/02/Coal-Power-White-Paper.pdf.
23
Bryan Walsh, The Scariest Environmental Fact in the World, TIME SCI. & SPACE, Jan. 29,
2013, available at science.time.com/2013/01/29/the-scariest-environmental-fact-in-the-world/
(reporting that China burns almost as much coal as the rest of the world combined).
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accommodate estimated increases. 24 Union Pacific (UP) and Burlington
Northern Sante Fe (BNSF), the only railroad companies exporting coal
from the PRB, 25 are both investing in capacity expansion. 26 On average,
about five trains travel from the PRB to the West Coast every day, but
increasing exports to the scale proposed by industry would require about
forty trains every day. 27 More coal shipments will result in more fugitive
coal dust.
Increased coal shipments for export from the PRB have not gone
unnoticed by environmental groups and communities along the railways.
Communities along the train routes are voicing concerns about the
potential health impacts from coal dust exposure as more trains pass
through local cities 28 like Spokane and Seattle, Washington; Billings,
Montana; and Portland, Oregon. 29 PRB coal is extremely friable and
easily degrades to smaller particles regardless of how it is transported or
handled, thereby causing fugitive coal dust. 30 Furthermore, coal trains
traveling from the PRB also pass through environmentally sensitive areas
such as national parks, forests, historical areas, and parks. 31 The concerns
surrounding coal trains are becoming more acute, as industry plans to
expand railroad and export terminal infrastructure to accommodate even
more coal exports.
Although coal dust contains toxic elements that are regularly
spewed into ecosystems and communities along the railways, it is
currently unregulated. Setting limits on the amount of allowable fugitive
24
News Release, Peabody Energy, Peabody Energy Announces Results for the Quarter
Ended
March
31,
2012
(Apr.
19,
2012),
available
at
phx.corporateir.net/phoenix.zhtml?c=129849&p=irol-newsArticle_Print&ID=1684914&highlight.
25
W. ORG. OF RESOURCE COUNCILS, supra note 14, at 7.
26
Hunt & Daniels, supra note 15, at 10.
27
W. ORG. OF RESOURCE COUNCILS, supra note 14, at 6-7.
28
See, e.g., Keila Szpaller, Councilor Calls for Impact Study, MISSOULIAN, May 16, 2012, at
B1; Kari Lydersen, Fueling the Tiger: The US Coal Industry Wants To Boost Exports to Asia—
Native American Tribes Stand in the Way, 27 EARTH ISLAND J., Jan. 1, 2013, at 36, available at
www.earthisland.org/journal/index.php/eij/article/fueling_the_tiger/; Zach Hagadone, The Dirty
Dance: Export Plan Puts North Idaho in the Middle of a New Coal Rush, BOISE WEEKLY, Feb. 1,
2012, at 13, available at 2012 WLNR 4585807.
29
W. ORG. OF RESOURCE COUNCILS, HEAVY TRAFFIC AHEAD: RAIL IMPACTS OF POWDER
RIVER BASIN COAL TO ASIA BY WAY OF PACIFIC NORTHWEST TERMINALS 50 (2012), available at
www.greatfallstribune.com/assets/pdf/G1191896711.PDF.
30
RODERICK J. HOSSFELD & ROD HATT, PRB COAL DEGRADATION: CAUSES AND CURES 1,
available
at
www.researchgate.net/publication/228972594_PRB_COAL_DEGRADATIONCAUSES_AND_CU
RES.
31
W. ORG. OF RESOURCE COUNCILS, supra note 29, at 50; see BNSF’s Rail Network Can Get
You There—No Matter Where You’re Shipping Your Freight, BNSF RAILWAY, available at
www.bnsf.com/customers/where-can-i-ship/ (last visited Mar. 24, 2013) (showing BNSF existing
lines and route map for coal).
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coal dust losses may mitigate adverse impacts from the losses themselves
and also the derailments they can cause, which further aggravate the risks
to the environment. This Comment will discuss the trends that have made
exporting coal a viable option for the coal industry and how
accommodating the industry’s plans to expand exports will impact the
environment. Next, the Comment will explain the history of the
regulatory scheme governing the railroads and its preemptive nature.
This Comment will then examine two ways to address the issue of
fugitive coal dust: first, through the statutory and regulatory authority of
the Federal Railroad Administration, and second, through the Clean Air
Act. The Comment proposes that states regulate coal dust as particulate
matter in their State Implementation Plans. Finally, the Comment
explores private citizens’ ability to sue railroad companies under the
citizen suit provision.
II.
BACKGROUND ON UNITED STATES’ COAL EXPORTS
Coal is the world’s dirtiest fossil fuel, 32 containing numerous toxic
and carcinogenic substances. 33 Every stage of coal’s life cycle—
mining, 34 transport, processing and combustion—has adverse impacts on
public health and the environment. 35 Even overseas consumption has a
domestic impact. 36 Burning coal results in soot dispersion around the
world, contributing to the causes of global climate change. 37 38
32
Coal releases more harmful substances than any other fossil fuel. When burned, coal
releases carbon dioxide, sulfur dioxide, and nitrogen oxides at higher rates than natural gas or oil.
The average emission rates in the United States from coal-fired generation are 2,249 pounds per
megawatt hour (“lbs/MWh”) of carbon dioxide, thirteen lbs/MWh of sulfur dioxide, and six
lbs/MWh of nitrogen oxides. In contrast, natural gas-fired generation average emissions rates in the
United States are half as much carbon dioxide, one percent as much sulfur oxides, and less than a
third as much nitrogen oxides. Oil is almost as dirty as coal, but it still burns cleaner. Average
emissions rates for oil-fired generation are one fourth less carbon dioxide, eight percent less sulfur
dioxide, and one third fewer nitrogen oxides. See generally Clean Energy, U.S. ENVTL. PROTECTION
AGENCY, www.epa.gov/cleanenergy/energy-and-you/affect/air-emissions.html (last updated Oct. 17,
2012) (citing U.S. EPA, eGRID 2000) (reporting that natural gas-fired generation average emissions
rates in the U.S. are 1135 lbs/MWh of carbon dioxide, 0.1 lbs/MWh of sulfur dioxide, and 1.7
lbs/MWh of nitrogen oxides, and that oil-fired generation average emission rates in the U.S. are
1672 lbs/MWh of carbon dioxide, 12 lbs/MWh of sulfur dioxide, and 4 lbs/MWh of nitrogen
oxides).
33
Epstein et al., supra note 3, at 74-75.
34
Coal mining is detrimental to human health and the environment through air pollution,
water pollution and depletion, and land use impacting farm land. W. ORG. OF RESOURCE COUNCILS,
supra note 14, at 12.
35
Epstein et al., supra note 3, at 74-75.
36
See, e.g., Keith Bradsher & David Barboza, Pollution from Chinese Coal Casts a Global
Shadow, N.Y. TIMES, June 11, 2006, at A1.
37
Fossil Fuels, ENVTL. & ENERGY STUDY INST., www.eesi.org/fossil_fuels (last visited Mar.
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Despite these known consequences of coal mining and burning of
coal fuel, coal dust regulations are non-existent. At this time (2013),
there are no limits on the amount of coal dust that can be released into
the air during transportation. 39 The lack of regulation is particularly
important because industry plans to increase coal exports 40 from an
already unprecedented spike in coal exports. In 2011, United States’ coal
exports were up thirty-one percent from 2010 and the highest since
1991. 41
Currently, the only export terminal for PRB coal is in Canada. 42
While there are no terminals to enable coal exports from the West Coast
of the United States, 43 large coal companies like Alcoa, Ambre Energy,
Arch Coal, and Peabody Energy are proposing to open new terminals in
Washington and Oregon. 44 To these companies, terminals in these states
are ideal because transporting coal from the western coal fields through
the northwest is the fastest and cheapest route. 45 However, if
environmentalists and other coal opponents are able to successfully block
the construction of these terminals, coal companies may also consider the
Gulf Coast and the East Coast. 46
Meeting projected demand overseas for United States coal exports
will produce other environmental impacts than those resulting from coal
dust. Expanding coal exports will require additional rail and terminal
infrastructure, which pose their own environmental risks. Coal exports
from the PRB are restricted because key segments of track between the
PRB and West Coast ports are operating at or near capacity, a total of no
more than five unit trains per day. 47 In order to create more capacity for
21, 2013) (reporting that coal combustion is responsible for more than thirty-six percent of the
greenhouse gas emissions in the United States).
38
See, e.g., Bradsher & Barboza, supra note 36, at A1.
39
COLUMBIA CTR. FOR CLIMATE CHANGE LAW, supra note 20, at 10.
40
NAT’L WILDLIFE FED’N, supra note 1, at 4.
41
ENERGY POLICY RESEARCH FOUND., INC., supra note 10, at 5.
42
W. ORG. OF RESOURCE COUNCILS, supra note 14, at 7.
43
POWER, supra note 22, at 1.
44
See Earthfix, Coal Scorecard: Your Guide to Coal in the Northwest, OPB, June 28, 2012,
earthfix.opb.org/energy/article/coal-score-card/ (discussing five coal export terminal project
proposals, two in Washington and three in Oregon).
45
NAT’L WILDLIFE FED’N, supra note 1, at 2.
46
Larry S. Soward, As Pacific Northwest Fights Coal Export Terminals, Gulf Coast Should
Not
Be
a
Spectator,
AIR
ALLIANCE
HOUS.,
June
8,
2012,
airalliancehouston.org/commentary/detail/as_pacific_northwest_fights_coal_export_terminals_gulf_
coast_should_not_be_ (noting that currently six ports on the Gulf Coast and East Coast account for
the vast majority of the coal exports, at ninety-four percent in 2010).
47
W. ORG. OF RESOURCE COUNCILS, supra note 14, at 6-7, 9. Capacity is measured by the
number of trains a segment of track can handle in a one day period. Id at 8.
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coal exports, rail infrastructure needs to be expanded or upgraded. 48 Rail
expansion projects can cause sink holes, increased noise and vibration,
groundwater contamination in the event of a rail line accident, and higher
concentrations of hazardous air pollutants. 49 Additionally, due to the
heavy weight of coal, more exports will elevate diesel emissions, as each
125 to 150 car train requires four to five locomotives. 50
Existing export terminals also have limited capacity.51 However,
coal producers are expected to undertake the necessary expansions to
accommodate new export volumes. 52 The Environmental Protection
Agency (EPA) has raised concerns about the construction of new export
terminals because of their impacts on species, critical habitats, and
aquatic resources. 53 The EPA is also concerned about these projects’
potential contribution to climate change and the drift of particulates,
mercury, and ozone from Asian countries to the United States. 54
A.
THE SHIFT WESTWARD TO THE POWDER RIVER BASIN
In 1971, under the authority of the Clean Air Act (CAA), the EPA
promulgated the first sulfur dioxide emission standards for coal power
plants. 55 In 1990, amendments to the Clean Air Act set even greater
restrictions for sulfur emissions. 56 Because sulfur dioxide is a byproduct
of coal combustion, one consequence of the stricter standards was a shift
from high-sulfur coal located in the eastern United States, to low-sulfur
coal located in the western United States. 57
In addition to low sulfur content, sub-bituminous coal is in high
48
Key Facts: Trains, supra note 6.
See Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 550 (8th Cir.
2003) (discussing the adequacy of the Surface Transportation Board’s Environmental Impact
Statement as it pertained to environmental impacts of “‘the largest and most challenging rail
construction proposal ever to come before [it]’”).
50
Key Facts: Trains, supra note 6.
51
Soward, supra note 46.
52
Id.
53
Letter from Kate Kelly, Dir. of the Office of Ecosystems, Tribal & Pub. Affairs, U.S.
Envtl. Prot. Agency, to Steve Gagnon, Projects Manager, U.S. Army Corps of Eng’rs, Comments on
Public Notice for Permit Application under Section 10 of the Rivers and Harbor Act for a Coal
Transloading Facility, Port of Morrow, Or. (Apr. 5, 2012), available at
media.oregonlive.com/environment_impact/other/EPA%20letter%20about%20PEIS.PDF.
54
Id.
55
Eugene M. Trisko, Universal Scrubbing: Cleaning the Air, 84 W. VA. L. REV. 983, 985
(1982).
56
See 42 U.S.C.A. § 7651(b) (Westlaw 2013) (stating the goal to reduce annual emissions of
sulfur dioxide of ten million tons from 1980 emission levels).
57
Ari Peskoe, A Challenge for Federalism; Achieving National Goals in the Electricity
Industry, 18 MO. ENVTL. L. & POL’Y REV. 209, 266-67 (2011).
49
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demand due to its abundant supply and low cost. 58 Sub-bituminous coal
constitutes about forty-four percent of the coal mined in the United
States. 59 Large quantities are found in thick beds near the surface, which
are less expensive to mine and therefore produce cheaper coal. 60 Coal
production in the western United States has increased ten-fold since the
mid-1970s, and western resources have grown to more than half of all
U.S. production, from just over sixty million short tons (MMst) in 1973
to 549 MMst in 2003. 61
To satisfy both domestic and international coal demand, the PRB
has been particularly important because it contains nearly half the
nation’s coal supply, and it supplies the vast majority of relatively
cheap 62 low-sulfur coal. 63 While the majority of the coal extracted from
the PRB is shipped east for domestic use at coal-fired power plants, 64 it
is also important to coal exports because Asian markets have high energy
demands coupled with increasing clean-air concerns. 65 However, the
characteristics of PRB coal also makes it prone to causing coal dust. 66
B.
RAILROAD REGULATION
Regulation of the railroad industry changed dramatically in the
twentieth century from a highly regulated industry to a largely
unregulated industry. In 1887, Congress created the Interstate Commerce
Commission (ICC) to prevent railroad companies from abusing their vast
power over the shippers and communities they served. 67 By the 1970s
the railroad industry was near collapse as a result of the trucking,
pipeline, and barge industries. 68 To revive the industry, Congress began
implementing sweeping deregulations.
58
COLUMBIA CTR. FOR CLIMATE CHANGE LAW, supra note 20, at 2.
Id.
60
Today in Energy: Subbituminous and Bituminous Coal Dominate U.S. Coal Production,
U.S. ENERGY INFO. ADMIN., (Aug. 16, 2011), www.eia.gov/todayinenergy/detail.cfm?id=2670
[hereinafter Coal Dominates U.S. Coal Production].
61
RICHARD BONSKOWSKI ET AL., U.S. ENERGY INFO. ADMIN., COAL PRODUCTION IN THE
U.S.—AN
HISTORICAL
OVERVIEW
2
(2006),
available
at
www.eia.gov/FTPROOT/coal/coal_production_review.pdf.
62
See Jeff Nesbit, Coal Export Plan Goes Right Through Heart of Pacific Northwest, U.S.
NEWS & WORLD REP., Sept. 4, 2012, www.usnews.com/news/blogs/at-the-edge/2012/09/04/coalexport-plan-goes-right-through-heart-of-pacific-northwest.
63
See Today in Energy, supra note 60.
64
See Groups Decry Salazar’s Dirty Energy Giveaway, WILD EARTH GUARDIANS (Mar. 22,
2011), www.wildearthguardians.org/site/News2?page=NewsArticle&id=6678&news_iv_ctrl=1194.
65
See COLUMBIA CTR. FOR CLIMATE CHANGE LAW, supra note 20, at 3.
66
HOSSFELD & HATT, supra note 30, at 1.
67
H.R. REP. NO. 104-311, at 90 (1995), reprinted in 1995 U.S.C.C.A.N. 793, 802.
68
Id.
59
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In 1995, Congress passed the Interstate Commerce Commission
Termination Act (ICCTA). 69 The ICCTA was designed to “eliminat[e]
obsolete rail provisions” and “keep[] bureaucracy and regulatory costs at
the lowest possible level, consistent with affording remedies only where
they are necessary and appropriate.” 70 To uphold this goal, Congress
intended the ICCTA to entirely preempt state economic regulation of
railroads. 71 Congress implemented its goals and intent by replacing the
ICC with the Surface Transportation Board (STB) 72 and granting the
STB “exclusive” jurisdiction over a wide range of railroad matters. 73 The
broad language of the ICCTA grants the STB exclusive jurisdiction over
transportation by rail carriers and remedies with respect to rules,
practices, routes, services, and facilities of such carriers. 74 Additionally,
the STB has exclusive jurisdiction over the construction, acquisition,
operation, abandonment, and discontinuation of railroad operations or
facilities. 75 The STB also has exclusive licensing authority for the
construction and operation of rail lines. 76
The “exclusive” language of the ICCTA has resulted in federal
courts declaring that many state and local regulations affecting railroad
operations are preempted. 77 However, because the CAA mandates state
action through the SIP processes, courts will attempt to harmonize the
ICCTA and these state regulations rather than invoke preemption. 78
Railroads are also subject to federal safety regulations promulgated by
the Federal Railroad Administration.
III. THE FEDERAL RAILROAD ADMINISTRATION AND SAFETY
REGULATION
The Department of Transportation regulates the railroads through
two agencies: the STB, described above, and the Federal Railroad
Administration (FRA). The Federal Rail Safety Act (FRSA) 79 authorizes
69
I.C.C. Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (1995).
See H.R. REP. NO. 104-311, at 93.
71
Id. at 95-96.
72
See 49 U.S.C.A. §§ 701, 702 (Westlaw 2013).
73
49 U.S.C.A. § 10501(b)(2) (Westlaw 2013).
74
Id. § 10501(b)(1).
75
Id. § 10501(b)(2).
76
49 U.S.C.A. § 10901 (Westlaw 2013).
77
COLUMBIA CTR. FOR CLIMATE CHANGE LAW, supra note 20, at 6.
78
Id at 10.
79
The FRSA, unlike the ICCTA, explicitly permits some state and local rail safety
regulations in areas not covered by the FRA. 49 U.S.C.A. § 20106(a)(2) (Westlaw 2013). This
allows states to avoid ICCTA preemption and retain power to pass some safety rules. See, e.g.,
Union Pac. R.R. v. Cal. Pub. Util. Comm’n, 346 F.3d 851 (9th Cir. 2003) (examining FRSA
70
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the FRA to regulate “every area of railroad safety.” 80 The authority
extends to everything from hazardous materials to employee training. 81
A.
COAL DUST POSES A RISK TO RAIL SAFETY AND
CONSEQUENTLY THREATENS HUMAN SAFETY AND THE
ENVIRONMENT
The FRA’s broad authority over railroad safety allows it to regulate
fugitive coal dust since coal dust can compromise track stability and
contribute to derailments. 82 Derailments can adversely impact soil and
water by spilling locomotive fuel, coal, and coal dust. 83 The FRA
reported 389 train derailments between January and April of 2012 and
almost 1500 derailments in 2011. 84 By June in 2012, six major coal train
derailments had already occurred, dumping carloads of coal and causing
fatalities. 85 The National Transportation Safety Board, an independent
federal agency charged with investigating significant accidents such as
train derailments, 86 typically considers coal dust on tracks as a potential
contributor to derailments. 87 Because there are no mandated and
enforceable limits on the amount of allowable coal dust losses, a safety
rule which minimized or eliminated allowable losses would guard
against coal dust buildup that contributes to derailments. This safeguard
would in turn further protect the environment and public safety from the
aftermath of derailments.
In May of 2005, two train derailments occurred on the main lines
heading out of the PRB. 88 Coal dust accumulation was among the factors
contributing to the derailments. 89 The derailments prompted the
preemption without triggering ICCTA preemption). This Comment will not discuss the nuances of
preemption between the FRSA and ICCTA in terms of a state or local safety regulation of coal dust.
However, this may be another way to address coal dust problems.
80
49 U.S.C.A. § 20103(a) (Westlaw 2013).
81
See Railroad Safety, FED. R.R. ADMIN., www.fra.dot.gov/Page/P0010 (last visited Oct. 8,
2012).
82
Coal Dust Frequently Asked Questions, BNSF RAILWAY, www.bnsf.com/customers/whatcan-i-ship/coal/coal-dust.html (last visited Oct. 29, 2012).
83
See, e.g., Hirsch & Hare, supra note 8, at 1A.
84
Manuel Quinones, Coal: Derailments Add Fuel to Export Battle, GREENWIRE, July 11,
2012, www.eenews.net/public/Greenwire/2012/07/11/2.
85
Eric de Place, Coal Goes off the Rails, SIGHTLINE DAILY, July 19, 2012,
daily.sightline.org/2012/07/19/coal-goes-off-the-rails/.
86
About the National Transportation Safety Board, NAT’L TRANSP. SAFETY BD.,
www.ntsb.gov/about/index.html (last visited Mar. 19, 2013).
87
Quinones, supra note 84.
88
Josh Voorhees, Railroads, Utilities Clash over Dust from Coal Trains, E & E PUBL’G, Jan.
25, 2010, www.eenews.net/public/Greenwire/2010/01/25/2.
89
See INFRASTRUCTURE SECURITY & ENERGY RESTORATION, supra note 7, at 14.
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Burlington Northern Sante Fe railroad (BNSF) and federal agencies to
investigate the effect of coal dust on railroad tracks from the PRB. BNSF
found that “coal dust poses a serious threat to the stability of the track
structure and thus to the operational integrity of [the] lines.” 90
Additionally, based on the FRA’s research, the STB has confirmed that
coal dust poses a serious problem for railroad safety and operations. 91
The STB acknowledged that “coal dust is a particularly harmful
contaminant of ballast . . . [and] interferes with track stability to a much
greater extent than other contaminants present in the PRB . . . [e]ven if
the amount of coal dust varies throughout the PRB.” 92
Increased coal exports would exacerbate the safety risks posed by
coal dust, because more shipments mean more coal dust losses and
buildup in the ballast. Most coal cars are uncovered. Transporting coal in
uncovered cars is standard industry practice in order to cut costs. 93 Opentopped rail cars are cheaper and more easily loaded than covered cars. 94
Covered cars are also a safety hazard because they increase the risk of
the coal spontaneously combusting. 95 In the PRB, the consequence of
using uncovered cars is the loss of approximately 500 pounds of coal
dust from each car. 96 Based on the average length of coal trains leaving
the PRB, 115-140 cars, 97 this means roughly 57,500 to 70,000 pounds of
coal dust are released into the environment during each trip. Currently,
about ten coal trains travel from the PRB to the West Coast every day,
but increasing exports to the scale proposed by industry would require at
least a 500 percent increase in train traffic, to sixty trains a day. 98 This
would also mean an increase in coal dust losses and heightened safety
risk.
90
Coal Dust Frequently Asked Questions, BNSF RAILWAY, www.bnsf.com/customers/whatcan-i-ship/coal/coal-dust.html (last visited Oct. 29, 2012).
91
See Ark. Elec. Coop. Corp., No. FD 35305 (Surface Transp. Bd. Mar. 2, 2011),
www.stb.dot.gov/decisions/readingroom.nsf/WebDecisionID/40436?OpenDocument, 2011 WL
742698, at *5.
92
Id.
93
Letter from Columbia Riverkeeper et al., supra note 5, at 14; See Scott Learn, Coal Clash:
Dust Up over How Much Blows Off on Trains Through Oregon, Washington, OREGONIAN, June 30,
2012,
www.oregonlive.com/environment/index.ssf/2012/06/coal_clash_dust_up_over_how_mu.html.
94
See, e.g., Gier supra note 2; Bleizeffer, supra note 2; Bennett & Sexton, supra note 2.
95
See, e.g., Gier, supra note 2, at 3.
96
Key Facts: Trains, supra note 6.
97
Energy:
Coal,
WYO.
STATE
GEOLOGICAL
SURV.,
www.wsgs.uwyo.edu/Research/Energy/Coal.aspx (last visited Apr. 8, 2013).
98
W. ORG. OF RESOURCE COUNCILS, supra note 14, at 8, 15.
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B.
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CONFLICT BETWEEN SHIPPERS AND OWNERS CAN STALL
ATTEMPTS TO MITIGATE COAL DUST LOSSES
Despite acknowledgements from private industry and multiple
government agencies that coal dust contributes to train derailments, no
enforceable safety regulations or mitigation measures are in place to
prevent coal dust losses, largely due to conflicts about who will bear the
financial burden of mitigation measures. 99 The struggle is between the
shippers, who own or lease the vast majority of the uncovered coal
cars, 100 and BNSF, which owns and operates the line from the PRB. 101
The shippers take the position that BNSF, which is responsible for track
maintenance under its contracts with the shippers, should be responsible
for cleaning the coal dust. 102 Shippers argue that if the railway could
charge shippers for track maintenance and measures to limit coal dust
emissions, it would be “double dipping.” 103
Controversy between the shippers and BNSF regarding coal dust
mitigation has been an ongoing battle for years. In 2009, BNSF issued a
tariff requiring shippers to take all necessary steps to keep coal dust
emissions below a standard set by the railroad. 104 In response, Arkansas
Electric Cooperative Corporation (AECC) filed a petition in 2009 with
the STB to declare the tariff an unreasonable rule or practice. 105 The STB
held that the tariff could not be enforced as written, but it did authorize
railroads to impose reasonable requirements upon coal shippers to
mitigate coal dust emissions. 106 Shortly after this decision, BNSF revised
the tariff, which became effective as of October 2011. 107 The current
99
See Voorhees, supra note 88.
Id.
101
Although the track is jointly owned by BNSF and Union Pacific, BNSF solely operates
and maintains the line. Ark. Elec. Coop. Corp., No. FD 35305 (Surface Transp. Bd. Mar. 2, 2011),
www.stb.dot.gov/decisions/readingroom.nsf/WebDecisionID/40436?OpenDocument, 2011 WL
742698, at *1.
102
Voorhees, supra note 88.
103
Id.
104
Ark. Elec. Coop. Corp., No. FD 35305 (Surface Transp. Bd., Oct. 28, 2009), 2009 WL
3474880, at *1.
105
Id.
106
Ark. Elec. Coop. Corp., No. FD 35305 (Surface Transp. Bd. Mar. 2, 2011),
www.stb.dot.gov/decisions/readingroom.nsf/WebDecisionID/40436?OpenDocument, 2011 WL
742698, at *8.
107
Memorandum from BNSF to BNSF Coal Customers on Coal Dust Mitigation
Requirements (July 14, 2011), available at domino.bnsf.com/website/updates.nsf/updatesmarketing-coal/711FF24E19133BFD862578CD0057F83B?Open.
100
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tariff requires shippers to reduce coal dust emission by at least eightyfive percent through a variety of suppression methods requiring approval
by BNSF. 108 However, a report released after the tariff became effective
reported that shippers are not complying. 109
The saga continues as shippers and owners bring their grievances to
the STB with a series of filings called the “Reasonableness of BNSF
Railway Company Coal Dust Mitigation Tariff Provisions.” 110 A recent
filing from October 1, 2012, by Western Coal Traffic League, cited the
lack of any enforcement provision in the tariff. 111 To avoid further
conflict between shippers and owners, and further delays in the
implementation of effective mitigation techniques, the FRA should
address the issue through its rulemaking authority.
C.
THE FRA SHOULD PROMULGATE A SAFETY RULE TO
REQUIRE COAL DUST MITIGATION MEASURES
The FRA should promulgate a safety rule regarding coal dust
mitigation based on its statutory authority and regulatory history. A
mandatory, enforceable mitigation rule would protect the environment
from coal dust losses during transit and coal and fuel spills from
derailments. 112 The FRA is given broad authority under the Federal Rail
Safety Act (FRSA) to issue rules and orders for “every area of railroad
safety.” 113 Specific responsibilities under this broad authority include
investigating, reporting, and developing safety strategies to combat the
causes of derailments. 114
One way the FRA combats derailments is through adoption of
comprehensive regulations prescribing minimum track safety
standards. 115 Most germane to the effects of coal dust are FRA
regulations governing ballast. The ballast provides drainage and
108
Id.
Sayeh Tavangar, Some Shippers Not Complying with BNSF Coal Dust Tariff, WUSA9
News, Nov. 3, 2011, www.wusa9.com/news/local/story.aspx?storyid=173329.
110
See David Gambrel, Coal Dust Control: Arkansas Electric Petition for Declaratory Order,
COAL AGE (Jan. 6, 2012), www.coalage.com/index.php/departments/transportation-tips/1594-coaldust-control-arkansas-electric-petition-for-declaratory-order.html.
111
Opening Evidence and Argument of W. Coal Traffic League, Financial Docket 35557, at
33-36
(Surface
Transp.
Bd.,
Oct.
1,
2012),
available
at
www.stb.dot.gov/filings/all.nsf/6084f194b67ca1c4852567d9005751dc/dbf283ade01f06db85257a8b
004d420f/$FILE/233093.PDF (addressing reasonableness of BNSF Railway Company coal dust
mitigation tariff provisions).
112
See Hirsch & Hare, supra note 8, at 1A.
113
49 U.S.C.A. § 20103(a) (Westlaw 2013).
114
49 C.F.R. § 1.88(c),(d) (Westlaw 2013).
115
49 C.F.R. § 213.1 et seq. (Westlaw 2013).
109
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structural support for the heavy loading applied by trains. 116 Coal dust is
a fouling agent, meaning that it can destabilize railroad track by filling in
voids in the unbound aggregate layer of the ballast. 117 Since the FRA
already requires that all tracks be sufficiently supported and stabilized by
adequate ballast material, 118 a safety regulation to limit the amount of
coal dust losses would complement and expand upon existing safety
regulations.
In addition to regulations for ballast safety, the FRA has already
created regulations for coal dust. These regulations require the FRA to
remove from service and repair plain bearing journal boxes containing
coal dust “that can reasonably be expected to damage the bearing; or
have a detrimental effect on the lubrication of the journal and
bearing.” 119 The operation of a train car with a damaged plain bearing
box from coal dust is also prohibited. 120 These rules demonstrate the
FRA’s awareness of safety issues caused by coal dust and the FRA’s
authority to regulate it.
The FRA can develop a more effective and environmentally sound
safety rule than the current BNSF coal dust mitigation rule. The BNSF
requires a shipper to load coal cars in a specific way to eliminate the
sharp angles and irregular surfaces that can promote the loss of coal dust
during transit and to use dust suppression topper agents 121 to reduce coal
dust losses by at least eighty-five percent. 122 However, this requirement
still allows up to fifteen percent of coal dust to be lost. Moreover, dust
suppression topper agents may have adverse environmental and health
impacts, including soil contamination and air pollution. 123 In order to
116
Erol Tutumluer et al., Laboratory Characterization of Coal Dust Fouling Ballast Behavior
3 (Sept. 21-24, 2008) (unpublished draft manuscript submitted for the AREMA 2008 Annual
Conference
&
Exposition),
available
at
www.arema.org/files/library/2008_Conference_Proceedings/Laboratory_Characterization_of_Coal_
Dust_Fouled_Ballast_Behavior_2008.pdf.
117
Id. at 2.
118
See 49 C.F.R. § 213.103 (Westlaw 2013); see also 49 C.F.R. § 213.334 (Westlaw 2013).
119
49 C.F.R. § 230.102(c) (Westlaw 2013).
120
49 C.F.R. § 215.107(c) (Westlaw 2013).
121
U.S. ENVTL. PROT. AGENCY, POTENTIAL ENVIRONMENTAL IMPACTS OF DUST
SUPPRESSANTS: “AVOID ANOTHER TIMES BEACH,” AN EXPERT PANEL SUMMARY, at v (Thomas
Piechota et al. eds., 2002), available at www.epa.gov/esd/cmb/pdf/dust.pdf (explaining that topper
agents are chemical sprays applied to dust causing substances, such as coal, to reduce the amount of
fugitive dust).
122
Coal Dust Frequently Asked Questions, BNSF RAILWAY, www.bnsf.com/customers/whatcan-i-ship/coal/coal-dust.html (last visited Oct. 29, 2012) (stating that shippers may request approval
to use any other suppression methods that reduce dust by eighty-five percent).
123
U.S. ENVTL. PROT. AGENCY, supra note 121, at 13 (“Potential environmental impacts
include: surface and groundwater quality deterioration; soil contamination; toxicity to soil and water
biota; toxicity to humans during and after application; air pollution; accumulation in soils; changes
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reduce coal dust emissions without the use, or with smaller amounts, of
topper agents, the FRA should promulgate a rule to require that cars be
filled with less coal 124 or to reduce speed limits. 125 Coal dust can also be
regulated under the Clean Air Act.
IV. STATES’ AUTHORITY TO REGULATE COAL DUST UNDER
THE CLEAN AIR ACT’S STATE IMPLEMENTATION PLANS
Although there are no federal limits on coal dust blowing off mobile
sources, states have the authority to regulate coal dust as part of their
State Implementation Plans (SIP) under the CAA. 126 Achieving and
maintaining federally established National Ambient Air Quality
Standards (NAAQS) is primarily the responsibility of the states. 127 Each
State develops and submits to the EPA for approval a SIP that outlines
how the State will achieve, maintain, and enforce each one of the
NAAQS. 128
In order to receive EPA approval the SIP must be quantifiable,
enforceable, replicable, and accountable. 129 Each State has “the
maximum administrative discretion possible” when implementing a
SIP 130 “so long as the SIP includes certain requirements for permits,
enforcement, emissions monitoring, and the like.” 131 A State can impose
stricter standards than the federal NAAQS 132 and expand regulations to
non-criteria pollutants 133 (defined as pollutants other than those with
federally established NAAQS). Once the EPA approves a SIP it is
in hydrologic characteristics of the soils; and impacts on native flora and fauna populations.”).
124
See Bleizeffer, supra note 2.
125
See CONNELL HATCH, FINAL REPORT: ENVIRONMENTAL EVALUATION OF FUGITIVE COAL
DUST EMISSIONS FROM COAL TRAINS, GOONYELLA, BLACKWATER & MOURA COAL RAIL SYSTEMS,
QUEENSLAND
RAIL
LIMITED
5
(2008),
available
at
www.aurizon.com.au/InfrastructureProjects/Rail%20Network/Coal_Loss_Management_Project_En
vironmental_Evaluation.pdf. The amount of coal dust lost depends on many factors, including coal
properties, train and wind speed, trains passing another train, train frequency, train vibration, profile
of coal load, transport distance, and precipitation. Id.
126
COLUMBIA CTR. FOR CLIMATE CHANGE LAW, supra note 20, at 10.
127
SECTION OF ENV’T, ENERGY, & RES., AM. BAR ASS’N, THE CLEAN AIR ACT HANDBOOK
43 (Julie R. Domike & Alec C. Zacaroli eds., 2011).
128
Id.
129
Id. at 48-49.
130
Exec. Order No. 13,132, 64 Fed. Reg. 43,255, 43,256 (Aug. 4, 1999).
131
Sierra Club v. Korleski, 681 F.3d 342, 343 (6th Cir. 2012) (citing 42 U.S.C. § 7410(a)(2)).
132
Wash. Envtl. Council v. Sturdevant, 834 F. Supp. 2d 1209, 1216 (W.D. Wash. 2011).
133
A State could also regulate coal dust as a non-criteria pollutant. See id. However, the State
would still face challenges regarding the debatable impacts of coal dust and ICCTA preemption
challenges. Due to the overlapping considerations, whether non-criteria pollutant or PM, and in light
of the additional step of amending a SIP to include a non-criteria pollutant, this Comment discusses
regulating coal dust only as PM.
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incorporated into federal law. 134 Coal dust could be regulated as
particulate matter. Additionally, coal dust problems can be litigated by
private citizens 135 under a narrative standard provision of a SIP.
A.
REGULATING COAL DUST AS PARTICULATE MATTER
States have the authority to regulate coal dust as “particulate matter”
(PM). 136 PM encompasses a broad range of liquid droplets or solid
particles made up of chemically and physically diverse substances, 137
including acids, organic chemicals, metals, and soil or dust particles. 138
Because PM can harm humans and the environment, the EPA established
NAAQS 139 for PM. 140 The EPA regulates PM that is smaller than ten
micrometers, because these particles can be inhaled into the lungs,
damaging the heart and lungs and causing serious health effects. 141 PM is
also harmful to the environment because it can be carried long distances
by wind and affect the acidity of water bodies, depleting nutrients and
damaging forests, farm crops, and ecosystem diversity. 142 Coal dust
qualifies as PM because its size ranges from over 100 micrometers to
less than two micrometers. 143
134
City of Ashtabula v. Norfolk S. Corp., 633 F. Supp. 2d 519, 527 n.2 (N.D. Ohio 2009); see
Safe Air for Everyone v. U.S. Envtl. Prot. Agency, 488 F.3d 1088, 1091 (9th Cir. 2007) (holding that
EPA approval of a SIP gives it the “force and effect of federal law”).
135
42 U.S.C.A. § 7604(a)(1) (Westlaw 2013).
136
COLUMBIA CTR. FOR CLIMATE CHANGE LAW, supra note 20, at 10.
137
U.S. ENVTL. PROT. AGENCY, INTEGRATED SCIENCE ASSESSMENT FOR PARTICULATE 1-4
(Dec. 2009), available at www.epa.gov/ncea/pdfs/partmatt/Dec2009/PM_ISA_full.pdf.
138
U.S. ENVTL. PROT. AGENCY, PARTICULATE MATTER (last updated June 28, 2012),
www.epa.gov/pm/index.html. The EPA regulates PM in two categories based on size because
particle size directly correlates to potential health problems. “Inhalable coarse particle,” known as
PM 10, are larger than 2.5 micrometers and smaller than 10 micrometers in diameter. “Fine
particles,” known as PM 2.5, are 2.5 micrometers in diameter and smaller. Id.
139
The CAA authorizes the Administrator of the Environmental Protection Agency to identify
and list air pollutants, from numerous mobile or stationary sources, that may reasonably be
anticipated to “cause or contribute to air pollution [and] . . . endanger public health or welfare.” 42
U.S.C.A. § 7408(a)(1)(A-B) (Westlaw 2013). The Administrator then proposes and promulgates
primary and secondary National Ambient Air Quality Standards for the listed pollutants. 42
U.S.C.A. § 7409(a) (Westlaw 2013). After the NAAQS are set, each State is required to “adopt and
submit . . . a plan which provides for implementation, maintenance, and enforcement of such . . .
standard[s].” 42 U.S.C.A. § 7410(a)(1) (Westlaw 2013).
140
U.S. ENVTL. PROT. AGENCY, supra note 137, at 1-4; see also 36 Fed. Reg. 8186 (Apr. 30,
1971).
141
Particulate
Matter,
U.S.
ENVTL.
PROT.
AGENCY,
www.epa.gov/air/particlepollution/health.html (last updated Mar. 18, 2013).
142
Id.
143
Christopher F. Blazek, Vice Pres. Mktg., Benetech Inc., Presentation at the American Coal
Council (June 25-26, 2003), available at www.powerpastcoal.org/wp-content/uploads/2011/08/TheRole-of-Chemicals-in-Controlling-Coal-Dust-Emissions.pdf.
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While not all fugitive coal dust particles are less than ten
micrometers, 144 this does not bar a State from regulating it. For example,
one study recommended assuming that half of the total coal dust losses
consist of PM 10, and one fifth of the losses are PM 2.5. 145 Therefore,
although not all the losses are regulated PM, a significant portion of the
losses are. As discussed above, the EPA has set NAAQS for PM, and the
states can set even stricter standards in their SIPs. Moreover, the EPA
recommends preventive measures to control fugitive dust, rather than
mitigative controls. 146 The EPA also notes that some individual sources
may contribute insignificant amounts of dust, but as a source category on
the whole, the contributions may be significant. 147
There are also gaps in the scientific literature regarding the health
effects of coal dust from rail transportation. 148 While some
environmental groups are claiming coal is harmful to human health,
proponents of the railroad industry criticize these claims because many
of the concerns involve health impacts due to heavy and long-term
occupational exposure to coal dust. 149 The conflict could be resolved by
conducting a new and detailed study specific to PRB coal and region, but
a recently proposed study to examine the impacts of coal dust losses
through cities to international ports failed in the U.S. House of
Representatives. 150 The proposal would have required the Department of
144
See, e.g., SECTION OF ENVTL. ANALYSIS, STB, FINAL ENVTL. IMPACT STATEMENT:
POWDER RIVER BASIN EXPANSION PROJECT App. C, at 36 (Nov. 2001), available at
pbadupws.nrc.gov/docs/ML1224/ML12243A381.pdf [hereinafter PRB EXPANSION PROJECT FEIS]
(concluding in the Final Environmental Impact Statement for the Powder River Basin Expansion
Project, that most fugitive coal dust particles are larger than 10 micrometers and are expected to fall
out in the air only for relatively short distances).
145
THE CANADIAN COUNCIL OF MINISTERS OF THE ENV’T, FUGITIVE COAL DUST EMISSIONS
IN
CANADA
at
47
(Nov.
2001),
available
at
www.powerpastcoal.org/wpcontent/uploads/2011/08/Fugitive-Coal-Dust-Emissions-in-Canada-2001.pdf.
146
U.S. ENVTL. PROT. AGENCY, FUGITIVE DUST BACKGROUND DOCUMENT AND TECHNICAL
INFORMATION DOCUMENT FOR BEST AVAILABLE CONTROL MEASURES 1-6 (1992), available at
nepis.epa.gov/EPA/html/DLwait.htm?url=/Exe/ZyPDF.cgi?Dockey=2000JCJE.PDF.
147
Id. at 1-7.
148
MULTNOMAH CNTY. HEALTH DEP’T, THE HEALTH EFFECTS OF RAIL TRANSPORT OF COAL
THROUGH
MULTNOMAH
COUNTY,
OREGON
9
(2013),
available
at
media.oregonlive.com/environment_impact/other/Coal%20Report%20.pdf.
149
See Northwest Wash. Cent. Labor Council, An Open Letter to the Whatcom County
Community
(Oct.
11,
2011),
available
at
library.constantcontact.com/download/get/file/1105671172285-18/NWWCLC+Doc+Letter0001.pdf;
see also PRB EXPANSION PROJECT FEIS, supra note 144, App. C, at 35 (determining that “coal dust
is relatively inert and not a hazard to human health or biological resources . . . .”). Id. at App. C, at
36 (concluding that most fugitive coal dust particles are larger than 10 micrometers).
150
Ricky Maranon, Congress Shoots Down Proposed CB Coal Train Study, KCBY News,
Sept. 26, 2012, www.kcby.com/home/related/Congress-shoots-down-proposed-CB-coal-train-study171435621.html.
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Transportation and the EPA to issue a report to Congress about the
environmental and public health impacts of fugitive coal dust within six
months of the bill’s passage. 151 Two reasons for rejecting the proposal
were that the EPA has already extensively studied the impacts of PM,
and that coal dust can be regulated as PM by the agency. 152 Despite
scientific uncertainty and conflicting views on the impacts of coal dust,
that inconclusiveness is not fatal to a State’s ability to regulate coal dust
as PM.
Under the CAA, uncertainty is not a prohibitive factor in regulating
air pollution. The EPA is not restricted to mere remedial regulation,
because it is authorized to regulate pollution that it determines “may
reasonably be anticipated to endanger public health or welfare.” 153
Indeed, “[t]his language requires a precautionary, forward-looking
scientific judgment about the risks of a particular air pollutant, consistent
with the CAA’s precautionary and preventive orientation.” 154 Although a
State can regulate coal dust as PM, the regulation will have to avoid
ICCTA preemption.
Regulating coal dust as PM has the advantage of avoiding ICCTA
preemption for several reasons. First, the regulation would have the
advantage of a favorable standard of review. ICCTA preemption is a
question of law that courts review de novo, and the presumption is
against preemption, placing the burden of persuasion on the party
arguing preemption. 155 Additionally, preemption is unlikely because the
regulation would carry the force and effect of a federal law, serve the
interest of public health and welfare, be generally applicable to all
sources of coal dust, and not unreasonably burden railroad operations or
interstate commerce.
The CAA’s SIP program is an example of a cooperative federalism
arrangement, 156 requiring state and federal governments to work together
to achieve NAAQS. 157 Courts will seek to harmonize the CAA and
151
H. Amdt. 1493, 112th Cong (2012). The proposal was raised by Congressman Peter
Defazio (D-Or.) as an amendment to the “Stop the War on Coal Act.” H.R. 3409, 112th Cong.
(2012).
152
Maranon, supra note 150.
153
Coal. for Responsible Regulation, Inc. v. Envtl. Prot. Agency, 684 F.3d 102, 122 (D.C.
Cir. 2012) (per curiam) (citing 42 U.S.C. § 7521(a)(1)).
154
Id. (internal quotation marks omitted).
155
See, e.g., Tex. Cent. Bus. Lines Corp. v. City of Midlothian, 669 F.3d 525, 529 (5th Cir.
2012).
156
COLUMBIA CTR. FOR CLIMATE CHANGE LAW, supra note 20, at 10-11.
157
“Cooperative federalism” is the “[d]istribution of power between the federal government
and the states in which each recognizes the powers of the other while jointly engaging in certain
governmental functions.” BLACK’S LAW DICTIONARY (9th ed. 2099); see, e.g., Hodel v. Va. Surface
Mining & Reclamation Ass’n, 452 U.S. 264, 289 (1981) (holding that the Surface Mining Act, like
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ICCTA, 158 because once approved by the EPA, state regulations
promulgated in a SIP become federal law. 159 Accordingly, the STB has
stated that the ICCTA does not generally preempt EPA-approved
statewide plans under federal environmental laws. 160 Coal dust
regulations in a SIP are not as likely to be preempted by the ICCTA as
regulations that are not a part of the SIP.
Multiple federal courts have held that the ICCTA “preempts all
‘state laws that may reasonably be said to have the effect of managing or
governing rail transportation, while permitting the continued application
of laws having a more remote or incidental effect on rail transportation.’
What matters is the degree to which the challenged regulation burdens
rail transportation.” 161 Unlike a narrow rule that “appl[ies] exclusively
and directly to railroad activity,” 162 a broad regulation on fugitive coal
dust emissions from all mobile sources would have the essential
“incidental effect” on railroads to avoid preemption.
Moreover, the EPA has already approved the regulation of PM from
mobile sources. For example, the Idaho SIP for particulate matter
requires, when practical, that open-bed trucks transporting dust-emitting
materials be covered. 163 Applying a similar rule to all mobile sources
transporting dust emitting materials (e.g., coal) would generally and nondiscriminatorily encompass rail transportation of coal.
the CAA, survives Tenth Amendment challenges because it “establishes a program of cooperative
federalism that allows the States, within limits established by federal minimum standards, to enact
and administer their own regulatory programs, structured to meet their own particular needs”).
158
See, e.g., Ass’n of Am. R.Rs. v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097
(9th Cir. 2010) (“If an apparent conflict exists between ICCTA and a federal law, then the courts
must strive to harmonize the two laws, giving effect to both laws if possible. If an apparent conflict
exists between ICCTA and a state or local law, however, different rules apply.” (citations omitted)).
159
Safe Air for Everyone v. U.S. Envtl. Prot. Agency, 488 F.3d 1088, 1091 (9th Cir. 2007);
see also Ass’n of Am. R.Rs., 622 F.3d at 1094 (holding that a local California Air District could not
enforce a rule against idling trains unless it first submitted the rule for approval as part of the
California SIP and then the SIP was submitted to the EPA for approval). Id. at 1098 (until the rule is
approved by both the State and the EPA, it does not “have the force and effect of federal law”).
160
Ass’n of Am. R.Rs., 622 F.3d at 1098; see also Holland v. Delray Connecting R.R., 311 F.
Supp. 2d 744, 757 (N.D. Ind. 2004) (stating that there is a “clear indication that the STB itself sees
some difference in the preemptive scope of 49 U.S.C. § 10501(b) between state law of general
applicability and federal law of general applicability.”).
161
Ass’n of Am. R.Rs., 622 F.3d at 1097-98 (quoting N.Y. Susquehanna & W. Ry. Corp. v.
Jackson, 500 F.3d 238, 252 (3d Cir. 2007)); see also Franks Inv. Co. v. Union Pac. R.R., 593 F.3d
404, 410 (5th Cir. 2010) (en banc) (agreeing with that “persuasive” interpretation of the scope of
ICCTA preemption).
162
Ass’n of Am. R.Rs., 622 F.3d at 1098 (holding that the Air Quality District’s rules
regulating idling locomotive emissions—which were not part of the SIP—were preempted by the
ICCTA because “the rules apply exclusively and directly to railroad activity, requiring the railroads
to reduce emissions and to provide, under threat of penalties, specific reports on their emissions and
inventory.”).
163
IDAHO ADMIN. CODE r. 58.01.01.651 (Westlaw 2013).
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A regulation on coal dust will be preempted if it significantly
interferes with railroad operation or unreasonably burdens interstate
commerce. 164 The STB has clarified that the ICCTA does not interfere
with state and local agencies’ ability to implement federal environmental
statutes, such as the CAA, unless the “regulation is being applied in such
a manner as to unduly restrict the railroad from conducting its operations
or unreasonably burden interstate commerce.” 165 Regulating coal dust
would not “unduly restrict” railroad operations, because the STB has
already ruled that requiring coal dust suppression methods is not
unreasonable. 166 The STB recognizes that loading requirements for
various commodities are regularly established and that the rules can
“change . . . in response to changing circumstances, such as here, where
the problem of coal dust became apparent after years of increasingly
heavy traffic.” 167 The STB’s own precedent, allowing coal dust
mitigation measures, indicates that regulating coal dust emissions is not
an unreasonable burden on railroad operations.
Although coal dust mitigation measures (e.g., surfactants or covered
cars) would increase cost, it would not invalidate the regulation for
unreasonable interference with railroad operations. In New Orleans &
Gulf Coast Railway Co. v. Barrois, the U.S. Court of Appeals for the
Fifth Circuit stated that it is “doubt[ful] whether increased operating
costs are alone sufficient to establish unreasonable interference with
railroad operations.” 168 Indeed, reasoning that generally applicable laws
are preempted by the ICCTA simply because they have an economic
164
Interstate commerce is burdened when either the dormant Commerce Clause or the
Commerce Clause is violated. The “dormant” Commerce Clause is implied in the Commerce Clause,
U.S. CONST., art. I, § 8, cl. 3, and prohibits states from passing laws that discriminate against or
burden interstate commerce. Violations of the dormant Commerce Clause occur when a law
discriminates against interstate commerce by “differential treatment of in-state and out-of-state
economic interests that benefits the former and burdens the latter. Discriminatory laws that are
motivated by simple economic protectionism are subject to a virtually per se rule of invalidity, . . .
which can only be overcome by a showing that the State has no other means to advance a legitimate
local purpose.” United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330,
338-39 (2007) (internal quotation marks and citations omitted).
165
Humbolt Baykeeper v. Union Pac. R.R., No. C 06-02560 JSW, 2010 WL 2179900, at *3
(N.D. Cal. May 27, 2010) (citing Friends of the Aquifer, STB Financial Docket No. 33966 (Surface
Transp. Bd. Aug. 10, 2001), 2001 WL 928949, at *4.
166
Ark. Elec. Coop. Corp., No. FD 35305 (Surface Transp. Bd. Mar. 2, 2011),
www.stb.dot.gov/decisions/readingroom.nsf/WebDecisionID/40436?OpenDocument, 2011 WL
742698, at *7.
167
Id. at *8.
168
New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 335-36 (5th Cir. 2008)
(internal quotation marks omitted) (citing Lehigh Valley R.R. v. Bd. of Pub. Util. Comm’rs, 278
U.S. 24, 33-34 (1928), which had held that a requirement that a railroad to bear an additional
$100,000 expense to construct an overheard crossing to preserve the straightness of a road for safety
reasons was near, but not beyond, the line of reasonableness).
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impact “could mean that railroads cannot be required to put postage on
their mail.” 169 In fact, although “any tariff provision must be reasonably
commensurate economically with the problem it addresses,” the STB
decided that no quantified cost-benefit analysis was warranted when
deciding the reasonableness of BNSF’s coal dust suppression
requirements. 170
Furthermore, the CAA already regulates aspects of the railroads at
the federal level. The EPA Administrator is required to set standards for
locomotive engines to “achieve the greatest degree of emission reduction
achievable through the application of technology.” 171 The EPA’s
authority to regulate locomotive engines emissions 172 demonstrates that
the ICCTA does not make railroads untouchable by the CAA. Although
states are explicitly preempted by the EPA from promulgating any rules
regulating locomotives or locomotive engines, 173 no such preemption
exists for states regulating coal dust.
Additionally, soon after the enactment of ICCTA, the STB ruled
that the preemption clause 174 “does not usurp the right of state and local
entities to impose appropriate public health and safety regulation on
interstate railroads,” so long as those regulations do not interfere with or
unreasonably burden railroading. 175 In Green Mountain Railroad v.
Vermont, the U.S. Court of Appeals for the Second Circuit followed this
169
Holland v. Delray Connecting R.R., 311 F. Supp. 2d 744, 757 (N.D. Ind. 2004).
Ark. Elec. Coop. Corp., No. FD 35305 (Surface Transp. Bd. Mar. 2, 2011),
www.stb.dot.gov/decisions/readingroom.nsf/WebDecisionID/40436?OpenDocument, 2011 WL
742698, at *4.
171
42 U.S.C.A. § 7547(a)(5) (Westlaw 2013).
172
Although EPA has set federal standards for locomotive engines, a federal district court in
New Jersey ruled that state enforcement of “idling” locomotives was preempted by the ICCTA.
Middlesex Cnty. Health Dep’t v. Consol. Rail Corp., Civil No. 08-4547 (AET), 2009 WL 62444
(D.N.J. Jan. 9, 2009). However, the law alleged to be in violation was a narrative standard that did
not directly regulate locomotive emissions, but rather stated, “Notwithstanding compliance with
other subchapters of this chapter, no person shall cause, suffer, allow or permit to be emitted into the
outdoor atmosphere substances in quantities which shall result in air pollution as defined herein.”
N.J. ADMIN. CODE § 7:27-5.2(a) (Westlaw 2013). Notably, while the court’s main discussion was of
preemption by the ICCTA, defendants also raised the defense of the state law being preempted by
the CAA and the court acknowledged that “rules and regulations of the EPA explain that state
attempts to regulate this sphere of environmental legislation are preempted.” Middlesex, 2009 WL
62444, at *2 (citing 63 Fed. Reg. 18,978, 18,979 (Apr. 16, 1998)). Therefore, it is difficult to
ascertain whether an EPA-approved SIP rule regulating idling locomotives (if it were allowed and
not preempted also by the CAA) would also be preempted by the ICCTA. See, e.g., Ass’n of Am.
R.Rs. v. S. Coast Air Quality Mgmt Dist., 622 F.3d 1094, 1098 (9th Cir. 2010).
173
42 U.S.C.A. § 7543(e)(1)(B) (Westlaw 2013); see also Emission Standards for
Locomotives and Locomotive Engines, 63 Fed. Reg. 18,978 (Apr. 16, 1998) (codified at 40 C.F.R.
pts. 85, 89, 92).
174
49 U.S.C.A. § 10501 (Westlaw 2013).
175
New York Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252-53 (3d Cir. 2007)
(citing King County, 1 S.T.B 731 (Surface Transp. Bd. Sept. 25, 1996), 1996 WL 545598, at *3-4.
170
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approach by holding that states exercising traditional police powers
through “direct environmental regulations enacted for the protection of
the public health and safety, and other generally applicable, nondiscriminatory regulations and permit requirements would seem to
withstand preemption.” 176 As discussed above, regulating coal dust
would not unreasonably burden the railroads and can be done in a
general manner. An additional reason to find in favor of non-preemption
is that PM is regulated due to its correlation to potential health
problems, 177 and health and safety are traditional state police powers. 178
It follows that, because coal dust particles can be smaller than ten
micrometers and thus qualify as PM, a rule to regulate fugitive coal dust
would be an exercise of a State’s traditional police powers over public
health and safety, which favors non-preemption. Even if states are unable
to regulate coal dust, private lawsuits under the CAA may provide a
solution.
B.
CITIZEN SUITS UNDER NARRATIVE STANDARDS
If a State does not regulate coal dust as particulate matter, private
parties can bring a “citizen suit” under a SIP’s narrative emissions
standard. 179 The CAA authorizes citizens to bring a civil action against
any person alleged to be, or actually in violation of, an emission standard
or limitation. 180 Only Idaho 181 and Washington, 182 two of the states
through which coal shipments travel, have narrative standards in their
176
Green Mountain R.R. v. Vt., 404 F.3d 638, 643 (2d Cir. 2005).
Particulate Matter, U.S. ENVTL. PROT. AGENCY, www.epa.gov/pm/index.html (last
updated Mar. 18, 2013).
178
See, e.g., City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 438
(2002) (“Preemption analysis starts with the assumption that the historic police powers of the States
were not to be superseded by the Federal Act unless that was the clear and manifest purpose of
Congress.” (internal quotation marks and brackets omitted)).
179
While numeric standards set specific, quantitative limits and must be applied to specific
conditions and sets of circumstances, they leave little room for interpretation. Narrative standards are
general statements that establish quality goals and provide a mechanism for a qualitative framework
for monitoring, protecting, and maintaining air or water quality. Narrative standards are for the most
part guidelines, presented as general descriptions, and they encompass significant latitude for
interpretation. They are typically established in the absence of scientifically based numeric standards
or as a general framework within which numeric standards are defined. Pennaco Energy, Inc. v. U.
S. Envtl. Prot. Agency, 692 F. Supp. 2d 1297, at 1302 n.4 (D. Wyo. 2009).
180
42 U.S.C.A. § 7604(a)(1) (Westlaw 2013) (emphasis added).
181
IDAHO ADMIN. CODE r. § 58.01.01.776 (Westlaw 2013) (“No person shall allow, suffer,
cause or permit the emission of odorous gases, liquids or solids into the atmosphere in such
quantities as to cause air pollution.”).
182
WASH. ADMIN. CODE § 173-400-040 (Westlaw 2013) (“No person shall cause or allow the
emission of any air contaminant from any source if it is detrimental to the health, safety, or welfare
of any person, or causes damage to property or business.”).
177
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SIPs.
A narrative standard differs from a numeric standard in that no
quantified amount of the pollutant is stated in the SIP. For example, air
quality criteria can consist of numeric pollution limits (for example,
sulfur dioxide is not to exceed 0.030 parts per million/year 183 ) or
narrative standards (for example, “no person shall allow emissions if
detrimental to health, safety, or cause property damage”). The CAA
defines “emission standard” and “emission limitation” as a requirement
that “limits the quantity, rate, or concentration of emissions of air
pollutants on a continuous basis.” 184 However, as discussed below, the
ability to maintain a citizen suit depends on how a court interprets
“emission standard” or “emission limitation.”
Some courts require the SIP provision to include specific, quantified
standards, and some courts may interpret the narrative standard as
sufficient. In City of Ashtabula v. Norfolk Southern Corp., a railway
company was sued based on allegations that coal dust emissions from its
coal dock facility were a public nuisance in violation of Ohio’s SIP. 185
The SIP provision prohibits the emission from any source of dust or any
other substances as to endanger the health, safety or welfare of the
public, or cause unreasonable injury or damage to property. 186 The U.S.
District Court for the Northern District of Ohio held that this narrative
standard established an identifiable emission limitation as required to
bring a citizen suit, because the emission was “in such amounts” as to
damage plaintiff’s property and constitute a public nuisance. 187
Furthermore, the U.S. Supreme Court has reasoned that enforcing only
numerical criteria would impose a heavy regulatory burden on the states,
because they would be required to conduct detailed and individualized
studies. 188
On the other hand, in McEvoy v. IEI Barge Services, Inc., the U.S.
Court of Appeals for the Seventh Circuit held that the plaintiff could not
sue a barge service under the citizens’ suit provision of the CAA because
the complaint cited two laws that did not include numeric emission
limits. 189 The court noted that not all emissions are pollution, but rather,
that pollution is a subset of emissions covered by the CAA that must be
defined with some specificity in order to communicate what is
183
40 C.F.R. § 50.4 (Westlaw 2013).
42 U.S.C.A. § 7602(k) (Westlaw 2013) (emphasis added).
185
City of Ashtabula v. Norfolk S. Corp., 633 F. Supp. 2d 519, 527 (N.D. Ohio 2009).
186
Id. at 528.
187
Id. (citing 42 U.S.C. § 7602(k)).
188
Nw. Envtl. Advocates v. City of Portland, 56 F.3d 979, 989-90 (9th Cir. 1995) (citing PUD
No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700, 717 (1994)).
189
McEvoy v. IEI Barge Servs., Inc., 622 F.3d 671, 673, 680 (7th Cir. 2010).
184
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forbidden. 190 Therefore, the state law provision 191 prohibiting “emission
of any contaminant . . . so as . . . to cause or tend to cause air pollution in
Illinois, . . . or so as to prevent the attainment or maintenance of any
applicable ambient air quality standard” 192 did not define any “quantity,
rate, or concentration of emissions” 193 as required by the CAA.
Washington citizens affected by coal dust will probably not have
redress under the State’s narrative standard. In Washington
Environmental Council v. Sturdevant, a federal district court in
Washington agreed with the McEvoy court 194 in holding that a similarly
worded narrative standard was not enforceable through a citizen suit,
because “courts only enforce specific SIP strategies; they do not enforce
overall objectives or aspirational goals.” 195
It is unlikely that a citizen suit under the CAA will play a significant
role for states affected by PRB coal exports, because only Idaho and
Washington have such standards, and Washington courts have ruled that
a narrative emission standard is insufficient to support a citizen suit.
Although a citizen suit may be available in other states affected by PRB
coal exports, those states are beyond the scope of this Comment.
V.
CONCLUSION
The effects of burning coal are felt around the globe. 196 In the
United States, the combined factors of stricter regulations and cheaper
fuel alternatives have curbed the domestic appetite for coal-fired
energy. 197 However, foreign energy demands have created an overseas
190
Id. at 678.
The court also held invalid plaintiff’s alleged violation of an “emission of fugitive
particulate matter from any process . . . that is visible by an observer looking generally toward the
zenith at a point beyond the property line of the source.” Id. at 673 (citing ILL. ADMIN. CODE tit. 35,
§ 212.301 (Westlaw 2013)).
192
Id. (citing ILL. ADMIN. CODE tit. 35, § 201.141 (Westlaw 2013)).
193
42 U.S.C.A. § 7602(k) (Westlaw 2013).
194
The court also distinguished the McEvoy case because in McEvoy, the owner of a facility
was sued, not the State. It is well established that, because state “agencies have broad discretion
under the Narrative Standard, the provision is unenforceable as a citizen suit.” Wash. Envtl. Council
v. Sturdevant, 834 F. Supp. 2d 1209, 1214 (W.D. Wash. 2011); see, e.g., Sierra Club v. Korleski,
681 F.3d 342 (6th Cir. 2012); Citizens for a Better Env’t v. Deukmejian, 731 F. Supp. 1448, 1454
(N.D. Cal. 1990).
195
Sturdevant, 834 F. Supp. 2d at 1214.
196
See, e.g., Bradsher & Barboza, supra note 36, at A1.
197
See Overview: The CAA Amendments of 1990, supra note 11. The Amendments, e.g.,
“promote[] the use of clean low sulfur coal and natural gas, as well as innovative technologies to
clean high sulfur coal through the acid rain program.” Id.; see also Peskoe, supra note 57, at 262
(stating that in 2010, natural gas accounted for twenty-four percent of electricity generation in the
United States, up from only thirteen percent in 1996).
191
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market. 198 In light of these circumstances, the fight against coal has
expanded to curtailing coal exports. One way to protect the environment
and human health is to regulate fugitive coal dust.
Fugitive coal dust can be regulated by either a safety rule under the
authority of the FRA or by individual states pursuant to the authority
granted by the CAA’s SIP mechanism. Both of these approaches can
avoid ICCTA preemption. However, addressing the issue as a safety
regulation has the added advantage of conclusive studies and widespread
acceptance that coal dust presents a safety issue because it contributes to
derailments. Conversely, data gaps exist regarding the impact on human
health and the environmental caused by coal dust when viewed as PM
under the CAA.
Although a safety regulation is supported by more uncontested data
than regulation of coal dust as PM, it is important to remember that the
CAA is a precautionary statute. This means that absolute certainty of a
substance’s harmful effects is not a prerequisite to regulation. Therefore,
both regulatory approaches remain viable options for addressing fugitive
coal dust problems. The most significant difference will be jurisdictional.
Individual states can act alone and regulate coal dust as they deem
necessary to protect the health of their citizens and their environment, or
the FRA can set a federal standard that will apply uniformly throughout
the states.
198
See COLUMBIA CTR. FOR CLIMATE CHANGE LAW, supra note 20, at 3.
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